Bashore v. Performance Plumbing of Southwest Florida, Inc. et al
Filing
35
ORDER granting 31 Plaintiff's Motion to Compel Responses to Interrogatories and Incorporated Memorandum of Law; denying as moot 32 Plaintiff's Motion to Compel Discovery Responses. Defendants shall have up to and including January 11, 2016 to provide complete responses to Plaintiff's First Set of Interrogatories. Signed by Magistrate Judge Carol Mirando on 12/29/2015. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSHUA BASHORE, on his own
behalf and others similarly situated
Plaintiff,
v.
Case No: 2:14-cv-296-FtM-29CM
PERFORMANCE PLUMBING OF
SOUTHWEST FLORIDA, INC.,
LARRY LANGLEY and RANDAL
LANGLEY,
Defendants.
ORDER
Before the Court are Plaintiff's Motion to Compel Responses to Interrogatories
and Incorporated Memorandum of Law (Doc. 31) filed on October 30, 2015 and
Plaintiff’s Motion to Compel Discovery Responses (Doc. 32) filed on October 30, 2015.
On November 13, 2015, Defendants filed their Response in Opposition to Plaintiff’s
Motion to Compel Responses to Interrogatories and Discovery Responses. Doc. 33.
The motions, therefore, are ripe for review. For the reasons that follow, Plaintiff's
Motion to Compel Responses to Interrogatories (Doc. 31) will be granted, and
Plaintiff’s Motion to Compel Discovery Responses (Doc. 32) will be denied as moot.
On May 30, 2014, Plaintiff filed a complaint against Defendants alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. Doc. 1. Plaintiff
was an hourly-paid plumber who worked at assigned job sites away from Defendants’
warehouse.
Id.
For each assigned job, Plaintiff was required to go to the
warehouse, pick-up the necessary supplies for a particular job, then travel to the job
site in a company vehicle. Id. Plaintiff alleges that Defendants did not compensate
him for the hours worked at the warehouse preparing to go out on assigned jobs or
the travel time to the assigned jobs. Doc. 31 at 1-2. Plaintiff was only compensated
for the time spent working on a particular job, as that was the time billable to the
client.
Doc. 31 at 2.
On October 9, 2014, Defendants filed an Answer and
Affirmative Defenses. Doc. 24. As its forth affirmative defense, Defendants allege
that “[a]ny acts and/or omissions which may be found to be in violation of the rights
afforded by the FLSA were not willfully committed and Defendants acted in good
faith at all times.” Doc. 24 at 3.
I.
Plaintiff’s Motion to Compel Responses to First Set of Interrogatories
On April 23, 2015, Plaintiff served his First Set of Interrogatories on
Defendant, Performance Plumbing of Southwest Florida, Inc.
Doc. 31 at 2.
Plaintiff seeks responses to the following two interrogatories:
No. 10: Please identify all employees of Defendant (including former
employees) who worked at the same location(s) as Plaintiff, and whose duties
were similar to those performed by Plaintiff for Defendant and who were
compensated in a manner similar to Plaintiff between May 2011 and present.
For all such individuals, please provide the last known mailing address,
telephone number and dates of employment.
No. 12. Please identify all employees of Defendant (including former
employees) who were employed at the same location(s) as Plaintiff between
May 2011 and the present. For all such individuals, please provide the last
known mailing address, telephone number and dates of employment.
Doc. 31 at 2-3. On June 9, 2015, Defendants responded by objecting to each
interrogatory as “overly broad, unduly burdensome, irrelevant, not reasonably
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calculated to lead to the discovery of admissible evidence, not sufficiently limits (sic)
in time.” Id. Plaintiff states that despite an e-mail dated October 5, 2015 in which
Defendants, through their counsel, withdraw their objections to the interrogatories
(Doc. 31-1), Plaintiff has not received the responses to the interrogatories.
Rule 33 of the Federal Rules of Civil Procedure allows a party to serve on
another party written interrogatories that relate to “any matter that may be inquired
into under Rule 26(b)(1) and (2).”
Fed. R. Civ. P. 33(a)(1)-(2).
Rule 26 permits
“discovery regarding any nonprivileged matter that is relevant to any party's claim
or defense.” Fed. R. Civ. P. 26(b)(1). Relevance, for purposes of discovery, does not
hinge on admissibility at trial and is construed broadly to include any matter that
reasonably could lead to the discovery of admissible evidence. Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978). A written response or objection to an
interrogatory is due within 30 days after the service. Fed. R. Civ. P. 33(b)(2). A
party objecting to an interrogatory must state “with specificity” the grounds for such
objection. Id. at 33(b)(4). Furthermore, “[a] party resisting discovery must show
specifically how ... each interrogatory is not relevant or how each question is overly
broad, burdensome or oppressive. . .” Panola Land Buyer's Assn. v. Shuman, 762
F.2d 1550, 1559 (11th Cir.1985) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d
Cir. 1982). An evasive or incomplete answer or response must be treated as a failure
to answer or respond. Fed. R. Civ. P. at 37(a)(4). When a party fails to answer an
interrogatory, the party seeking the discovery may move to compel the response.
Fed. R. Civ. P. 37(a)(3)(B)(iii)
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Plaintiff argues that the interrogatories are relevant as they seek the identity
of witnesses who have first-hand knowledge of Defendants’ time-keeping and pay
practices. Doc. 31 at 4. Plaintiff argues that the witnesses will aid Plaintiff in his
preparation of his case, specifically in proving his assertions that the employees were
not compensated for all hours worked. Id. at 4-5. Additionally, Plaintiff argues
that the requested discovery will help Plaintiff discredit Defendant’s fourth
affirmative defense that Defendant acted in good faith.
Pursuant to 29 U.S.C.
§216(b), an employer who is liable for violations of the FLSA must pay liquidated
damages in the same amount as the compensatory damages.
If, however, the
employer “shows to the satisfaction of the court that the act or omission giving rise to
such action was in good faith and that he had reasonable grounds for believing that
his act or omission was not a violation of the FLSA,” the court has discretion to modify
the amount of liquidated damages. 29 U.S.C. §260. According to Plaintiff, if other
employees complained to Defendants about not being compensated for all hours
worked, but Defendants took no steps to address those complaints, or to modify their
time-keeping or compensation practice, this is evidence that Defendants may have
been on notice of their FLSA violations.
In Defendants’ two paragraph response to the instant motion, they simply
“deny the allegations as represented by Plaintiff” and assert that “all hours worked,
including drive time, is accurately reflected on the service tickets,” which were signed
by Plaintiff. Doc. 33 at 2. Defendants state that they have provided the names of
other employees who worked as plumber assistants for defendants, “during the
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relevant time frame that Plaintiff was employed by Defendants, i.e., December 18,
2013 through May 7, 2014.” Id. Defendants have not provided any explanation or
memorandum of legal authority, as required by Local Rule 3.01(b), in support of their
unilateral conclusion that anything between May 2011 (the requested date) and
December 18, 2013 is irrelevant.
Furthermore, Defendants have failed to
specifically show how each interrogatory is overly broad or unduly burdensome, and,
according to the e-mail dated October 5, 2015, Defendants waived those objections.
The Court finds that discovery sought in Interrogatories 10 and 12 is relevant for the
reasons provided by Plaintiff. Accordingly, Plaintiff’s Motion to Compel Responses to
First Set of Interrogatories is due to be granted.
II.
Plaintiff’s Motion to Compel Discovery Responses
On September 22, 2015, Plaintiff served his Second Set of Interrogatories and
Third Request for Production on Defendant, Performance Plumbing of Southwest
Florida, Inc. Doc. 32 at 1. Defendant’s responses to these discovery requests were
due on October 26, 2015. Id. Plaintiff alleges that as of the date of filing his motion,
Plaintiff received no responses to the discovery requests. Id. Defendants state that
due to an administrative error, the deadline to respond to Plaintiff’s requests was not
properly calendared. Doc. 33 at 1. Defendants state that as of November 6, 2015,
they complied with the discovery requests. Plaintiff has not moved for leave to file
a reply to address Defendants’ assertions, leaving the Court to believe that the
responses were complete. Accordingly, since Defendants have already complied with
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Plaintiff’s Second Set of Interrogatories and Third Request for Production, this
motion will be denied as moot.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff's Motion to Compel Responses to Interrogatories and
Incorporated Memorandum of Law (Doc. 31) is GRANTED. Defendants shall have
up to and including January 11, 2016 to provide complete responses to Interrogatory
Numbers 10 and 12.
2.
Plaintiff’s Motion to Compel Discovery Responses (Doc. 32) is DENIED
AS MOOT.
DONE and ORDERED in Fort Myers, Florida on this 28th day of December,
2015.
Copies:
Counsel of record
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